Author contends that sentencing discounts and other developments have created an imbalance in the justice system

The recently decided case of Spence v HM Advocate [2007] HCJAC 64 (Appeal No XC564/07), the latest in a line of cases dealing with allowances or discounts on sentences, provides further guidance on the various bases upon which a judge might assess the appropriate sentence to be imposed on an offender, especially one who pleads guilty at some stage in the process.

While the presentation of some of the facts of the case in the published report might not accurately reflect what occurred, that is neither here nor there. More significantly, the point of interest, if not concern, arises from the concept of and the approach to discounts on sentence in exchange for pleas of guilty. It seems that the ideology that drives this practice or policy also drives other recent changes to the criminal justice system.

We might be forgiven for believing that one of those considerations is the idea that by maintaining innocence against accusations by the state, or by claiming the right to fair trial, an accused person is perceived as somehow damaging society and the administration of justice. Worse perhaps is that he may be perceived as being the cause of unnecessary expenditure of money. As such, he deserves what can frequently be a substantial term of imprisonment beyond what might be imposed following a plea of guilty.

There is a latent fallacy within this notion of cost saving that even a cursory examination can expose, and I will address that point later.

Indicating intention

The view of the court, as expressed in Spence, is that “to have value” the “unequivocal indication” of an intention to plead guilty “must be adhered to throughout the proceedings and be appropriately vouched”. When dealing with pre-trial discussions in the Spence case, the court states in its opinion, “the advocate depute then responsible for the preparation of the case advised the defence that a plea of culpable homicide would not be accepted by the Crown.” It goes on to refer to later discussions and states: “On that date [the trial date] the appellant's representative informed the trial advocate depute that the appellant 'would plead guilty to culpable homicide'. The trial advocate depute rejected that offer.”

The word “unequivocal” does not appear in s 196 of the Criminal Procedure (Scotland) Act 1995 and therefore I cannot agree that the statute requires an "unequivocal indication" of an intention to plead guilty. The statute does not even mention to whom any “indication” should be given, let alone that it must be put to a court or a prosecutor in formal and “unequivocal” terms.

In addition, in the reality of negotiation with a prosecutor there can only be, as the statute says an "indication" of the accused's position. The outcome can and often does depend on agreement of a narrative of the evidence establishing the offence and acceptance by the prosecutor of what is to be said in mitigation, especially where that may impinge upon what has been alleged by "victims" of the actions of the accused. The indication of an intention to plead guilty is therefore always conditional and could rarely, if ever, be anything else.

Pleas and values

When, as in the debate in Spence, the court asks the advocate depute if he can estimate the cost of a trial, we immediately see the area of concern. To my mind there is a real irony behind all this concern for the "utilitarian value" of early pleas and perception that somehow there are savings to the public purse. For example, if a man loses the reward of an allowance or discount in sentence because the prosecutor rejects what is on offer, or for other good reason it is not indicated early enough, but thereafter a plea is accepted, is he to be held responsible for costs in preparation for trial? It would seem so, and his penalty is to be denied an allowance [discount] on sentence.

However, it is likely that taxpayers will often have to pick up a bigger bill than would have been the cost of a trial. To keep the prisoner at bed and board can cost something in the region of £50,000 per year, depending on the prison regime to which he is sent. Not all prisoners can contribute to the costs through work in prison. This excludes other burdens such as social security benefits for his family, costs of post-release supervision and assistance, and the rest. How on earth so-called “utilitarian value”, as it is now understood, has crept up to assume the importance it now has is an economic wonder.

We now know from numerous examples of miscarriages of justice that the fact that a jury convicts is no assurance that the right person was convicted. These must be merely "headline" figures, as most relate to serious crime with few, if any, arising from the 98% or so summary prosecutions. It would be hardly credible to suggest that miscarriages of justice caused by misguided acceptance of bad evidence and other reasons occur only in solemn prosecutions. A conviction may simply mean that on the day of his trial the accused was unable to resist the presentation of the state's case against him.

The mechanisms for discounting of sentences could be viewed as punishing an accused person for exercising his legal/constitutional right to go to trial. In a serious case the convicted person could lose his liberty for several years beyond the term that might have been imposed following a guilty plea. Logically, there is a stronger case for saying that a person who declares his guilt and thereby makes it clear that he is truly guilty should be given a heavier sentence than one who maintains his innocence. When a person pleads guilty the public can be as assured as it is possible to be that the person going to prison is guilty. Such a person is not merely someone who couldn't compete effectively against the machinery of the state, its professional witnesses and changes in legislation that have eased the evidential burden on the Crown and thereby the path towards conviction. He really is guilty!

Lest anyone be confused, I am being flippant here. Clearly, no person of sound mind will plead guilty on the promise of a heavier sentence. On the other hand, why should someone be penalised for seeking to vindicate a fundamental right to fair trial?

Anomalous results

Like everyone else who has read the case I am aware that it is stated in Du Plooy v HM Advocate 2003 SCCR 640 that an accused person is not to be punished for maintaining his innocence. But, how can the difference between eight years' and 12 years' imprisonment be viewed as anything else but punishment? It does not follow in every case that a conviction indicates a bad defence, or that the accused was wrong to go to trial. Often, even with the most undeserving accused it is impossible to put a cigarette paper between his credibility and that of prosecution witnesses. A jury or judge in a summary court might convict, but frequently prosecutors and defence lawyers alike will leave the court still at a loss as to where the truth lay.

As a conviction can be based on a decision of eight out of 15 jurors, it follows that seven of the jurors, that is judges of the facts, must have had doubts about the guilt of the accused, or may possibly have thought he was completely innocent. Against such cases the system of significant discounts or no discount seems frequently to be arbitrary and unfair.

The discounting system throws up other anomalies linked to the undue prominence of budget in considerations for sentence. If a person pleads guilty to a serious charge and saves a simple enquiry and two days of court time, the benefit might be a discount of four years on what could otherwise have been a 12-year sentence. If another person pleads guilty to a similar charge with a more complex background and saves the state millions of pounds in enquiry and trial costs, his benefit too could be similarly discounted by four years. In a much less serious but equally costly enquiry and trial, the discount is likely to be grossly disproportionate and towards the low side compared with the benefit to the state that is afforded by the plea.

Dangerous trend

In the absence of rational argument to the contrary, I believe that this trend whereby judges are obliged to become involved in decisions for the improvement of the financial wellbeing and management of the police and prosecution services is a dangerous one. On one view, as well as protecting the court’s budget, judges could be seen to be protecting the budget of the Lord Advocate, the police and HM Revenue & Customs (as regards the cost of work undertaken at the behest of the Crown). This might have the appearance of a lack of impartiality.

There has for a long time been available the prospect of early release from prison on parole or licence for prisoners who show contrition and thereby a possibility that offending behaviour is being addressed in a responsible manner. Set alongside that approach to such convicted persons, is s 196 not merely a complement? It appears to be so, and properly applied does no more than indicate to the prisoner at a much earlier stage in the sentence that responsible attitudes will be rewarded. Viewed as a tool aimed at rehabilitation it is an incentive to maintain a responsible attitude throughout the period of sentence with a view to further reward.

Experienced lawyers will have seen cases in which an accused’s defence might be viewed as an insult to common sense, but that should not be taken as a cue to deny him the right to a fair trial. It is not the fault of the lawyer that an unmeritorious line of defence is run at a trial. A sentencing judge might view this as a lack of contrition or act of irresponsibility on the part of the accused and one for which no credit should be given, but that is another matter. Equally, it may play a part when the question of parole arises.

There is no punishment for the state when equally nonsensical or unmeritorious prosecutions are mounted, and there have been a few. Significantly, there is no compensation or real assistance offered to a person who was the victim of such a prosecution. Unemployment, depression, family breakdown and suicide are all too familiar consequences for the victim and family of persons wrongly accused, whether by malice or mistake on the part of the accusers or incompetence by the investigating and prosecuting authorities.

There is a feeling that sentences are increasing at an alarming rate. The standard term in custody in a mandatory or discretionary life sentence seems to have rocketed. Offering a "discount" on goods in a sale when the price was hiked in advance of the sale seems at odds with good practice.

In reality, the criminal justice system is a tertiary service industry. No one can expect the system to turn a profit in the conventional sense of commerce, but that is not an excuse for bad fiscal management. The justice system is labour intensive, a major employer and a major part of the economy. Each sector of the industry is akin to a department within other more recognisable industries. There are the police, transport, court staff, judges, prosecutors, defence lawyers, prison staff, social workers, state hospitals, medical personnel, prison maintenance, and suppliers of food and equipment.

What we seem to have here is an absence of overall management, and the various departments are selfishly working against each other with the result that one department’s saving frequently causes another’s increase. If the managers in this industry are expected to be more alive to budgetary implications then it will need to be done in a more businesslike manner. All we have here is manipulation of individual budgets rather than overall management.

Costs are increasing and the prison population is burgeoning despite discounts in sentences. With the prisons being unable to do little more than contain many prisoners without the benefit of education and training, is it any wonder that reoffending is on the increase?

Judges are under pressure to increase the severity of punishment and yet do justice to the accused. In England, some sentences have already been cut on appeal on the ground that appalling overcrowding and conditions in prison in themselves contribute to the harshness of the punishment. To date, our Scottish judges have yet to face the obvious embarrassment of having to consider appeals on such a basis.

Year after year we are told that Scottish prisons are frequently substandard and usually overcrowded. These conditions make people worse, not better and the public become victims of this mismanagement. Subjecting more and more prisoners to the regime for longer and longer periods of time is just adding to the problem.

In addition, even with the changes that have been made for the better administration of the courts department of the criminal justice system, I wonder whether any remanded accused has been brought to trial within the now extended remand period of 140 days. Those changes seem to have produced unintended but perhaps readily foreseeable consequences and problems for other "departments" within the industry.

With the notable exception of defence lawyers, as the only ones independent of the state engaged in the criminal justice system, the numbers of those employed in the industry climbs and climbs. This is not exactly justice for the taxpayers who have to pay for it, nor for those whose benefits and healthcare must be cut for the same reasons.

When people call for increases in prison sentences, do they not realise that this is tantamount to writing a personal cheque for £50,000 for each year of each prisoner’s sentence? No one else but the taxpayer bears the cost of this. Would it not be an improvement if, rather than overburdening the prison services, we could see positive benefits in exchange for this cost instead of being made to feel as if we were subsidising state run schools for crime?

This whole subject must be ripe for open discussion. Forget the idea that the problems are the responsibility of the accused. They didn’t raise the stakes on sentences; they didn’t interpret s 196 and create a discounting formula; and neither did they produce "Bonomy reforms". Management and people in authority instinctively resent criticism, but discussion there must be, and it must be in a climate where lawyers can be assured that they are not putting their clients’ wellbeing at risk by reason of criticism not being received in the spirit in which it is given. Equally, there must be no jeopardy, even if only a perception, for those with ambition to advance their careers through the legal profession.

To eliminate such risks, some people might suggest the removal of these discussions from the courts. Whoever carries out such a task must be honest about vested interests, deal with them firmly and try to avoid being contaminated by fear of ill-informed clamour.

Some might suggest that the Scottish Government should undertake a full review of the mechanisms of this criminal justice industry. But although this recent development in sentencing policy might have had unintended consequences, it is echoed in other threatened changes to the criminal justice system that are the responsibility of the Scottish Government. They will allow the state’s apparatus in the form of police, prosecutors and Legal Aid Board to undermine the presumption of innocence and right to fair trial.

A cynic, although some might say "a well informed reasonable observer", could see similarities with more repressive regimes abroad where those daring to question any allegation or assertion by the state are considered to be undeserving of fair treatment. They may be presumed officially to be mad or subversive and thereby equally liable to incarceration. If it appears that we have moved only one tiny step in that direction, it should be enough to cause concern among all right thinking people.

The Author
John Carroll, solicitor advocate, Glasgow
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